Executing child rapists is cruel and unusual punishment, a divided U.S. Supreme Court decided Wednesday in overturning a Jefferson Parish death sentence and declaring as unconstitutional Louisiana's 1995 aggravated rape statute that allows the death penalty when victims are younger than 13.

The 5-4 decision also invalidates similar laws in five other states and prohibits the death penalty in crimes in which the victim does not die. The court left intact the death penalty for crimes against the state, such as espionage and terrorism.

The high court handed down its ruling in the case of Patrick Kennedy, 43, who was convicted and sentenced to die five years ago for raping an 8-year-old relative in his Harvey home in March 1998. Removed from death row, Kennedy now faces a mandatory life sentence in prison, another penalty for aggravated rape of a child younger than 13.

"The court has simply said crimes against individuals, where there's no homicide or no homicide intended, the death penalty is simply inappropriate," said New Orleans capital appeals attorney and death penalty opponent Denise LeBoeuf.

Jefferson Parish District Attorney Paul Connick Jr. said he respects the court's opinion, "but we agree with the four dissenting justices that the death penalty is an appropriate sentence for the brutal rape of an 8-year-old child."

The victim and her family are not being identified by The Times-Picayune. Connick said his office notified them early Wednesday of the court's decision.

"There's some closure for them now," Connick said. "They know he's going to spend the rest of his life in jail."

Until December, when a Caddo Parish jury recommended that convicted child rapist Richard Davis should die, Kennedy was the only person in the nation on death row for a crime in which the victim did not die.

Eighth Amendment invoked

Kennedy's attorneys argued that the death penalty is a disproportionate punishment for child rape and violates the Eighth Amendment's prohibition of cruel and unusual punishment.

"The court makes clear that Louisiana's experiment with the death penalty for rape ran afoul of the United States Constitution," said attorney Ben Cohen of the Capital Appeals Project, who has represented Kennedy for five years.

In the majority opinion, Justice Anthony Kennedy wrote, "We cannot dismiss the years of long anguish that must be endured by the victim of child rape." He added, however, that "it does not follow, though, that capital punishment is a proportionate penalty for the crime."

The decision also affects at least 70 pending cases in Louisiana in which people are charged with capital child rape, according to the court's ruling. The law gave the prosecutors discretion in deciding whether to seek the death penalty. Connick said his office considered pursuing death in cases with the most egregious circumstances.

In Kennedy's case, the victim required emergency surgery and cannot bear children because of the rape. After raping her in her bed, Kennedy, who weighed nearly 300 pounds, bathed the girl and waited hours before calling 911, reporting then that two boys dragged the girl from her garage, where she was selling Girl Scout cookies, and raped her in a neighboring yard. He called a carpet-cleaning company about removing blood from carpet.

The high court's decision sends the case back to the Louisiana Supreme Court, which had upheld the conviction and the Louisiana law.

Analyzing other states

In reaching their decisions, justices looked at whether there's a national trend for or against executing child rapists, using an analysis the court used in two other death penalty cases since 2002. Kennedy's attorneys said there is no trend in favor of the punishment, but prosecutors argued that since Louisiana enacted its law in 1995, five other states have followed suit: Montana, South Carolina, Georgia, Oklahoma and Texas.

The court's majority found otherwise.

"We conclude there is a national consensus against capital punishment for the crime of child rape," Kennedy wrote.

Justice Samuel Alito, writing for the minority, said the majority failed to grasp an accurate national consensus on the punishment, saying the high court's 1977 decision that banned executing rapists of adult women, Coker vs. Georgia, "stunted legislation" and discouraged state lawmakers from capitalizing child rape.

That six states have capitalized child rape "might also have been the beginning of a new evolutionary line," Alito wrote. "We will never know, because the court today snuffs out the line in its incipient stage."

The majority ruling drew criticism from conservative Louisiana politicians. Gov. Bobby Jindal said it was "fundamentally improper" for the court to base its decision in part on "a perceived" national consensus against executing child rapists. "The opinion reads more like an out-of-control legislative debate than a constitutional analysis," he said.

U.S. Sen. David Vitter, R-La., said, "This decision is another reminder of the need for more sensible, strict constitutional jurists."

'Preordained' ruling

Legal experts were not surprised by the majority opinion.

John Blume, a Cornell University law professor and director of the Cornell Death Penalty Project, said the court used the same analysis in banning execution for the mentally retarded in 2002 and for people who were juveniles at the time of their offenses in 2005.

In deciding capital child rape in the wake of those decisions, Blume said, "the result was pre-ordained."

Law professor Carl Tobias of the University of Richmond, Va., also said the high court appears to follow the 2002 and 2005 decisions.

"To me this is another part of that development," Tobias said. "This doesn't come out of the blue. This comes from a line of cases."

Justice Anthony Kennedy also was influenced by the possibility of wrongful convictions, given problems with child memory and that a death penalty for child rapists removes an incentive for the rapist not to kill the victim, Blume said.

"In short, I think the court got it right," Blume said.

Joining Kennedy in the majority were Justices Stephen Breyer, Ruth Bader Ginsburg, John Paul Stevens and David Souter. Joining Alito in the minority were Justices Antonin Scalia and Clarence Thomas and Chief Justice John Roberts.

Alito and Roberts were appointed by President Bush, Ginsburg and Breyer by President Clinton, Souter and Thomas by the first President Bush, Kennedy and Scalia by President Reagan, and Stevens by President Ford.

Paul Purpura can be reached at ppurpura@timespicayune.com or 504.826.3791.